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Justice Scalia’s America

As Supreme Court Justice Antonin Scalia’s writings and speeches make clear, if justices who share his hard-right ideology take control of the Supreme Court, radical changes are sure to follow. Here are just some of the things that would change in Justice Scalia’s America:

People would lose the right to make their own medical decisions. Scalia has written that even fully competent adults have no constitutional right to refuse unwanted medical treatment.1

The government would control women’s bodies and eliminate a woman’s right to choose. Scalia has repeatedly advocated overturning the landmark Roe v. Wade decision that established a woman’s constitutional right to an abortion.2 He even believes women don’t have the constitutional right to decide whether to use birth control and contraceptives that could protect them from sexually transmitted infections.3

Government and religion would be one and the same. Scalia has written that people of faith should “combat” the tendency of democracy to “obscure the divine authority” of government.4 He issued one dissent that would require governments to fund instruction in ministry if they fund education generally.5 His dissent to another Supreme Court opinion would have allowed state governments to require the teaching of religious creationism.6 All of this pales in comparison to his dissent in Lee v. Weisman, in which Scalia actually argued for the elimination of the Constitution’s requirement that government be neutral toward religion. He would replace this requirement with an interpretation that would allow government-endorsed religion and prayer.7

Affirmative action would be forbidden at state schools, and campus diversity could disappear. Scalia dissented from the Supreme Court’s Grutter v. Bollinger ruling, which held that state colleges and universities can use affirmative action to increase educational opportunities for minorities.8 According to Scalia, if you support affirmative action programs, you subscribe to the “way of thinking” that resulted in slavery.9

People’s bedrooms would be fair game for government intrusion. Justice Scalia thinks the right to privacy concerning reproductive freedom or bodily integrity doesn’t exist. He has explicitly argued against overturning laws that made it illegal for gay Americans to have private, consensual sex, but his radical beliefs go much further. Scalia would actually allow the government to make sex between any consenting adults a criminal act—if it takes place outside of marriage. According to Scalia, the government should even be able to make masturbation a crime.10

Civil rights and liberties would “be ratcheted right down to the constitutional minimum.” Scalia thinks many of our rights aren’t really protected by the Constitution, and that they could, and perhaps should, be eliminated in a time of war. In one speech he actually said Americans should expect these fundamental freedoms to “be ratcheted right down to the constitutional minimum.”11

Women would have to pay taxes to fund public educational institutions that are only for men. When the Supreme Court voted to end gender discrimination by the state-funded Virginia Military Institute, which previously had been open only to men, Antonin Scalia was the only justice to dissent.12

Courts would no longer fight school segregation. In Freeman v. Pitts, Justice Scalia wrote that courts should no longer oversee the implementation of desegregation plans. Scalia argued in the same dissent that school segregation can never be remedied because it is impossible to identify its causes.13

The police will have no obligation to inform people who are arrested of their rights. Justices Scalia and Thomas were the only two justices who supported reversing the Miranda decision that requires law enforcement authorities to inform people who are arrested of fundamental rights like the right to remain silent and the right to an attorney.14

Votes of members of a racial minority group could matter less. Scalia’s opinions in voting rights cases would reverse rulings preventing redistricting plans that dilute the voting strength of minorities.15

The government could allow blatant exclusion of African Americans from juries. Scalia and Thomas have both argued that only blacks should be able to challenge the exclusion of blacks from juries. This would make discrimination in jury selection much harder to challenge.16

Workers would have a harder time striking for fair wages and benefits. Scalia wrote a dissent that would have weakened employees’ rights to strike and to engage in collective bargaining by expanding employers’ ability to refuse to negotiate with union representatives.17

State laws won’t protect patients if an HMO declines to pay for needed medical care. Scalia tried to overturn “patients’ bill of rights” laws that give people the right to a second opinion if HMOs refuse to fund needed treatment.18

The government will be able to prevent speeches that provoke controversy. Scalia signed onto a dissent that would have allowed local governments to charge controversial speakers large permit and police protection fees that could prevent the speakers from appearing.19

Americans’ cars would be subject to search at any time. Scalia argued police should be allowed to set up highway checkpoints to randomly search vehicles for illegal drugs.20

Environmental protection would be dealt a serious blow. Scalia has made the perplexing argument that if all members of a community are injured by environmental pollution, a citizens’ group shouldn’t be allowed to file suit to enforce anti-pollution laws.21 He wanted to prevent the federal government from enforcing protections against the destruction of endangered species.22 And Scalia actually wanted to prevent the Environmental Protection Agency from stepping in to stop pollution when state agencies fail to do so.23

Government workers could be fired if their boss doesn’t like their politics. Scalia wrote a dissent that would allow government supervisors to fire subordinates or deny them promotions if those subordinates belong to political parties the supervisors don’t like.24

State workers will lose their right to seek damages from their employer when their right to take time off to care for sick family members is violated. In his dissent to a Supreme Court decision about the Family and Medical Leave Act, Scalia wrote that he believes it is unconstitutional for the government to require states to compensate their employees when their rights to family and medical leave are violated.25